Slideshare uses cookies to improve functionality and performance, and to provide you with relevant advertising. If you continue browsing the site, you agree to the use of cookies on this website. See our User Agreement and Privacy Policy.

Slideshare uses cookies to improve functionality and performance, and to provide you with relevant advertising. If you continue browsing the site, you agree to the use of cookies on this website. See our Privacy Policy and User Agreement for details.

The 2013 cybersecurity executive order

1.
CRS Report for Congress
Prepared for Members and Committees of Congress
The 2013 Cybersecurity Executive Order:
Overview and Considerations for Congress
Eric A. Fischer
Senior Specialist in Science and Technology
Edward C. Liu
Legislative Attorney
John W. Rollins
Specialist in Terrorism and National Security
Catherine A. Theohary
Specialist in National Security Policy and Information Operations
November 8, 2013
Congressional Research Service
7-5700
www.crs.gov
R42984

2.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service
Summary
The federal role in cybersecurity has been a topic of discussion and debate for over a decade.
Despite significant legislative efforts in the 112th
and 113th
Congress, no major legislation on this
topic has been enacted since the Federal Information Security Management Act (FISMA) in 2002,
which addressed the security of federal information systems. In February 2013, the White House
issued an executive order designed to improve the cybersecurity of U.S. critical infrastructure
(CI). Citing repeated cyber-intrusions into critical infrastructure and growing cyberthreats,
Executive Order 13636, Improving Critical Infrastructure Cybersecurity, attempts to enhance
security and resiliency of CI through voluntary, collaborative efforts involving federal agencies
and owners and operators of privately owned CI, as well as use of existing federal regulatory
authorities.
Entities posing a significant threat to the cybersecurity of critical infrastructure assets include
cyberterrorists, cyberspies, cyberthieves, cyberwarriors, and cyberhacktivists. E.O. 13636
attempts to address such threats by, among other things,
• expanding to other CI sectors an existing Department of Homeland Security
(DHS) program for information sharing and collaboration between the
government and the private sector;
• establishing a broadly consultative process for identifying CI with especially high
priority for protection;
• requiring the National Institute of Standards and Technology to lead in
developing a Cybersecurity Framework of standards and best practices for
protecting CI; and
• directing regulatory agencies to determine the adequacy of current requirements
and their authority to establish additional requirements to address the risks.
Among the major issues covered by the unenacted legislative proposals in the 112th
Congress,
E.O. 13636 mainly addresses two: information sharing and protection of privately held critical
infrastructure. It does not provide exemptions from liability stemming from information sharing,
which would require changes to current law. Several of the legislative proposals included such
changes. With respect to protection of critical infrastructure, the provisions on designation of CI
and identification of relevant regulations are related to those in some legislative proposals.
In the 113th
Congress, some bills would provide explicit statutory authority for information-
sharing and framework activities similar to those in the executive order.
The issuance of E.O. 13636, as with many other executive orders, raises questions about whether
the order exceeds the scope of the President’s authority, in relation to the constitutional separation
of powers and validly enacted legislation. While answers to those questions are complex, the
executive order specifies that implementation will be consistent with applicable law and that
nothing in the order provides regulatory authority to an agency beyond that under existing law.
Overall, response to the executive order appears to be cautiously optimistic. Given the absence of
comprehensive cybersecurity legislation, some security observers contend that the order is a
necessary step in securing vital assets against cyberthreats. Others have argued, in contrast, that it
offers little more than do existing processes, that it could make enactment of a bill less likely, or

3.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service
that it could lead to government intrusiveness into private-sector activities, for example through
increased regulation under existing statutory authority. It appears to be too early in the
implementation of the order to determine how such concerns will be addressed and whether the
responses will satisfy critics and skeptics.

5.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 1
he federal legislative framework for cybersecurity is complex, with more than 50 statutes
addressing various aspects of it either directly or indirectly. Many observers do not believe
that the current framework is sufficient to address the growing concerns about the security
of cyberspace in the United States.1
However, no major cybersecurity legislation has been enacted
since 2002. Several legislative proposals were made during the 112th
Congress to close the gaps,
but none were enacted. Several bills have also been introduced in the 113th
Congress.
Within the executive branch, both the George W. Bush and Obama Administrations have focused
on improving the cybersecurity of critical infrastructure. The Bush Administration created the
classified Comprehensive National Cybersecurity Initiative (the CNCI) in 2008.2
The Obama
Administration performed an interagency review of federal cybersecurity initiatives in 2009,
culminating in the release of its Cyberspace Policy Review3
and the creation of the White House
position of Cybersecurity Coordinator. In the absence of enacted legislation, the Obama
Administration began drafting a cybersecurity executive order in 2012. The development
involved input from both federal agencies and stakeholders in the private sector.4
On February 12, 2013, President Obama issued Executive Order 13636, Improving Critical
Infrastructure Cybersecurity,5
along with Presidential Policy Directive 21 (PPD 21),6
Critical
Infrastructure Security and Resilience. The issuance of the executive order in the absence of
congressional action raises several questions that are addressed in this report:
• What are the kinds of threats to the national security and economic interests of
the United States that the executive order is intended to address?
• What steps does it take to address those threats, what is the status of their
implementation, and what issues do they raise?
• What is the legislative and constitutional authority for the executive order?
• How do its provisions relate to those in the major legislative proposals in the
112th
and 113th
Congresses?
• What has been the reaction of stakeholders to the order and what issues does it
raise?
1
For a discussion of this legislative framework, see CRS Report R42114, Federal Laws Relating to Cybersecurity:
Overview and Discussion of Proposed Revisions, by Eric A. Fischer.
2
National Security Presidential Directive 54 / Homeland Security Presidential Directive 23 (NSPD-54/HSPD-23).
3
The White House, Cyberspace Policy Review, May 29, 2009, http://www.whitehouse.gov/assets/documents/
Cyberspace_Policy_Review_final.pdf; The White House, “Cyberspace Policy Review [Supporting Documents],” May
2009, http://www.whitehouse.gov/cyberreview/documents/.
4
Tony Romm, “White House Moves on Cybersecurity,” Politico, November 27, 2012, http://www.politico.com/news/
stories/1112/84247.html.
5
Executive Order 13636, “Improving Critical Infrastructure Cybersecurity,” Federal Register 78, no. 33 (February 19,
2013): 11737–11744. The information in this report is derived from unclassified sources, including this Executive
Order, and does not reflect information that may be included in a classified Presidential Order or the recently released
National Intelligence Estimate addressing cyberthreats to the Nation.
6
The White House, “Critical Infrastructure Security and Resilience,” Presidential Policy Directive 21, February 12,
2013, http://www.whitehouse.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-
security-and-resil.
T

6.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 2
Background: Threats and Consequences
Repeated cyber intrusions into critical infrastructure demonstrate the need for improved
cybersecurity. The cyber threat to critical infrastructure continues to growand represents one
of the most serious national security challenges we must confront. The national and
economic security of the United States depends on the reliable functioning of the Nation’s
critical infrastructure in the face of such threats.7
Cyberthreats to U.S. infrastructure and other assets are a growing concern to policymakers.
Information and communications technology (ICT)8
is ubiquitous and relied upon for government
services, corporate business processes, and individual professional and personal pursuits—almost
every facet of modern life. Many ICT devices and other components are interdependent, and
disruption of one component may have a negative, cascading effect on others. A denial of service,
theft or manipulation of data, or damage to critical infrastructure through a cyber-based attack
could have significant impacts on national security, the economy, and the livelihood and safety of
individual citizens.
Cyberthreats
Cyber-based technologies9
are now ubiquitous around the globe. The vast majority of users
pursue lawful professional and personal objectives. However, criminals, terrorists, and spies also
rely heavily on cyber-based technologies to support their objectives. These malefactors may
access cyber-based technologies in order to deny service, steal or manipulate data, or use a device
to launch an attack against itself or another piece of equipment. Entities using cyber-based
technologies for illegal purposes take many forms and pursue a variety of actions counter to U.S.
global security and economic interests. While E.O. 13636 discusses in general terms cyber-based
threats directed at the nation’s critical infrastructure, it does not identify the types of cyber-actors
and possible consequences of a successful attack. Commonly recognized cyber-aggressors
discussed below, along with representative examples of the harm they can inflict, include
cyberterrorists, cyberspies, cyberthieves, cyberwarriors, and cyberhacktivists.
Cyberterrorists
Cyberterrorists are state-sponsored and non-state actors who engage in cyberattacks as a form of
warfare. Transnational terrorist organizations, insurgents, and jihadists have used the Internet as a
tool for planning attacks, radicalization and recruitment, a method of propaganda distribution, and
a means of communication.10
While no unclassified reports have been published regarding a
7
E.O. 13636.
8
The term ICT is increasingly used instead of IT (information technologies) because of the convergence of
telecommunications and computer technology. However, the current federal legislative framework for cybersecurity
does not reflect that convergence and generally treats IT and telecommunications as separate technologies.
9
For purposes of this report, cyber-based technologies means electronic devices that access or rely on the transfer of
bytes of data to perform a mechanical function. The devices can access cyberspace (including the Internet) through the
use of physical connections or wireless signals.
10
For additional background information, see archived CRS Report RL33123, Terrorist Capabilities for Cyberattack:
Overview and Policy Issues, by John W. Rollins and Clay Wilson.

7.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 3
terrorist-initiated cyberattack on U.S. critical infrastructure (CI),11
the vulnerability of essential
components of that infrastructure to access and even destruction via the Internet has been
demonstrated. In 2009, the Department of Homeland Security (DHS) conducted an experiment
that revealed some of the vulnerabilities to the nation’s control systems that manage power
generators and grids. The experiment, known as the Aurora Project, entailed a computer-based
attack on a power generator’s control system that caused operations to cease and the equipment to
be destroyed.12
Cyberspies
Cyberspies are individuals who steal classified or proprietary information used by governments or
private corporations to gain a competitive strategic, security, financial, or political advantage.
These individuals often work at the behest of, and take direction from, foreign government
entities. For example, a 2011 FBI report noted, “a company was the victim of an intrusion and
had lost 10 years’ worth of research and development data—valued at $1 billion—virtually
overnight.”13
Likewise, in 2008 the Department of Defense’s (DOD’s) classified computer
network system was unlawfully accessed and “the computer code, placed there by a foreign
intelligence agency, uploaded itself undetected onto both classified and unclassified systems from
which data could be transferred to servers under foreign control.”14
The U.S. intelligence
community recently completed a classified National Intelligence Estimate (NIE) focused on
cyberspying against U.S. targets. Reportedly, the NIE “concluded that the United States is the
target of a massive, sustained cyber-espionage campaign that is threatening the country’s
economic competitiveness.”15
Media reports suggest that the NIE also assessed that Russia, Israel,
and France also engage in illegal accessing of United States entities for economic intelligence
purposes but notes that “cyber-espionage by those countries pales in comparison with China’s
effort.”16
A February 2013 report of an investigation by a private-sector security firm of intrusions
against more than 100 targets over the past seven years states that the attacks were performed by
a single Chinese group that appears to be linked to the People’s Liberation Army.17
11
The Executive Order uses the same definition of critical infrastructure as 42 U.S.C. 5195c(e): “systems and assets,
whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets
would have a debilitating impact on security, national economic security, national public health or safety, or any
combination of those matters.”
12
See “Challenges Remain in DHS’ Efforts to Secure Control Systems,” Department of Homeland Security, Office of
Inspector General, August 2009. For a discussion of how computer code may have caused the halting of operations at
an Iranian nuclear facility see CRS Report R41524, The Stuxnet Computer Worm: Harbinger of an Emerging Warfare
Capability, by Paul K. Kerr, John W. Rollins, and Catherine A. Theohary.
13
Executive Assistant Director Shawn Henry, “Responding to the Cyber Threat,” Federal Bureau of Investigation,
Baltimore, MD, 2011.
14
Department of Defense Deputy Secretary of Defense William J. Lynn III, “Defending a New Domain,” Foreign
Affairs, October 2010.
15
Ellen Nakashima, “U.S. Said to Be Target of Massive Cyber-Espionage Campaign,” Washington Post, February 10,
2013.
16
Ibid.
17
Mandiant, APT1: Exposing One of China’s Cyber Espionage Units, February 18, 2013,
http://intelreport.mandiant.com/Mandiant_APT1_Report.pdf.

8.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 4
Cyberthieves
Cyberthieves are individuals who engage in illegal cyberattacks for monetary gain. Examples
include an organization or individual who illegally accesses a technology system to steal and use
or sell credit card numbers and someone who deceives a victim into providing access to a
financial account. Cybercrime is widely regarded as lucrative and relatively low-risk for criminals
and costly for victims, with some estimates placing the annual global cost to individuals as high
as hundreds of billions of dollars.18
However, making accurate estimates of such aggregate costs
is problematic, and there does not appear to be any publicly available, comprehensive, reliable
assessment of the overall costs of cyberattacks.
Cyberwarriors
Cyberwarriors are agents or quasi-agents of nation-states who develop capabilities and undertake
cyberattacks in support of a country’s strategic objectives.19
These entities may or may not be
acting on behalf of the government with respect to target selection, timing of the attack, and
type(s) of cyberattack and are often blamed by the host country when accusations are levied by
the nation that has been attacked. Often, when a foreign government is provided evidence that a
cyberattack is emanating from its country, the nation that has been attacked is informed that the
perpetrators acted of their own volition and not at the behest of the government. In August 2012 a
series of cyberattacks were directed against Saudi Aramco, the world’s largest oil and gas
producer and most valuable company. The attacks compromised 30,000 of the company’s
computers and the code was apparently designed to disrupt or halt the production oil. Some
security officials have suggested that Iran may have supported this attack.20
However, other
observers suggest that the perpetrator of the attack was an employee of Saudi Aramco.21
Cyberhacktivists
Cyberhacktivists are individuals who perform cyberattacks for pleasure, or for philosophical or
other nonmonetary reasons. Examples include someone who attacks a technology system as a
personal challenge (who might be termed a “classic” hacker), and a “hacktivist” such as a
member of the cyber-group Anonymous who undertakes an attack for political reasons. The
activities of these groups can range from simple nuisance-related denial of service attacks to
disrupting government and private corporation business processes.
18
For discussions of federal law and issues relating to cybercrime, see CRS Report 97-1025, Cybercrime: An Overview
of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by Charles Doyle; and CRS
Report R41927, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law
Enforcement, by Kristin Finklea.
19
For additional information, see CRS Report RL31787, Information Operations, Cyberwarfare, and Cybersecurity:
Capabilities and Related Policy Issues, by Catherine A. Theohary.
20
Wael Mahdi, “Saudi Arabia Says Aramco Cyberattack Came from Foreign States,” Bloomberg News, December 9,
2012, http://www.bloomberg.com/news/2012-12-09/saudi-arabia-says-aramco-cyberattack-came-from-foreign-
states.html.
21
Michael Riley and Eric Engleman, “Code in Aramco Cyber Attack Indicates Lone Perpetrator,” Bloomberg
Businessweek, October 25, 2012.

9.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 5
Cyberthreats and Implications for U.S. Policy
These different kinds of cyber-aggressors and the types of attacks they can pursue are not
mutually exclusive. For example, a hacker targeting the intellectual property of a corporation may
be categorized as both a cyberthief and a cyberspy, and possibly a cyberwarrior if the activity is
conducted by a military enterprise, as has been claimed for some such attacks.22
A cyberterrorist
and cyberwarrior may be employing different technological capabilities in support of a nation’s
security and political objectives. Ascertaining information about the aggressor and its capabilities
and intentions is very difficult.23
The threats posed by these aggressors, coupled with the United
States’ proclivity to be an early adopter of emerging technologies,24
which often contain
unrecognized vulnerabilities and are introduced into existing computer networks, make for a
complex environment when considering operational responses, policies, and legislation designed
to safeguard the nation’s strategic economic and security interests. E.O. 13636 discusses the
nation’s reliance on cyber-based technologies and identifies activities and reporting requirements
to be addressed by numerous federal government departments and agencies.
Overview of the Executive Order
The federal role in what is now called cybersecurity25
has been debated for more than a decade.
Much of the recent debate has focused on two issues: sharing of cybersecurity-related information
within and across sectors, and the cybersecurity of CI sectors, including federal systems. E.O.
13636 attempts to address both of those issues, as well as others.
It uses existing statutory and constitutional authority to
• expand information sharing and collaboration between the government and the
private sector, including sharing classified information by broadening a program
developed for the defense industrial base to other critical-infrastructure sectors;
• develop a voluntary framework of cybersecurity standards and best practices for
protecting critical infrastructure, through a public/private effort;
22
Mandiant, APT1: Exposing One of China’s Cyber Espionage Units, op. cit.
23
The concept of attribution in the cybersecurity context entails an attempt to identify with some degree of specificity
and confidence the geographic location, identity, capabilities, and intention of the cyber-aggressor. Mobile technologies
and sophisticated data routing processes and techniques often make attribution difficult for U.S. intelligence and law
enforcement communities.
24
Emerging cyber-based technologies that may be vulnerable to the actions of a cyber-aggressor include items that are
in use but not yet widely adopted or are currently being developed. For additional information on how the convergence
of inexpensive, highly sophisticated, and easily accessible technology is providing opportunities for cyber-aggressors to
exploit vulnerabilities found in a technologically laden society see Office of the Director of National Intelligence,
“Global Trends 2030,” 2013, http://www.dni.gov/index.php/about/organization/global-trends-2030.
25
Cybersecurity is a convenient umbrella term that tends to defy precise consensus definition. Several different terms
are in use that have related meanings. For example, information security is defined in some subsections of federal
copyright law to mean “activities carried out in order to identify and address the vulnerabilities of a government
computer, computer system, or computer network” (17 U.S.C. 1201(e), 1202(d)), and, in the Federal Information
Security Management Act (FISMA, 44 U.S.C. 3542) as “protecting information and information systems from
unauthorized access, use, disclosure, disruption, modification, or destruction” to provide integrity, confidentiality, and
availability of the information. Other terms often used include information assurance, computer security, and network
security.

10.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 6
• establish a consultative process for improving critical-infrastructure
cybersecurity;
• identify critical infrastructure with especially high priority for protection, using
the consultative process;
• establish a program with incentives for voluntary adoption of the framework by
critical-infrastructure owners and operators;
• review cybersecurity regulatory requirements to determine if they are sufficient
and appropriate; and
• incorporate privacy and civil liberties protections in activities under the order.
The information-sharing and framework provisions in particular have received significant public
attention.
Information Sharing
Improved sharing of information on cybersecurity threats, vulnerabilities, attacks, prevention, and
response both within and across sectors, including government, is thought by most experts to be
critical to improving cybersecurity but fraught with barriers and uncertainties, relating especially
to privacy, liability, reputation costs,26
protection of proprietary information, antitrust law, and
misuse of shared information. A few sectors are subject to federal notification requirements,27
but
most such information sharing is voluntary, often through sector-specific Information Sharing and
Analysis Centers (ISACs)28
or programs under the auspices of the Department of Homeland
Security (DHS) or sector-specific agencies.29
A key question is how to balance the need for better,
more timely cybersecurity information with other needs such as protection of privacy and civil
rights as well as legitimate business and economic interests.
To improve information sharing, the order builds on a voluntary effort established in May 2011.
That program, known as the DIB30
Cyber Pilot, involved several defense industry partners, the
National Security Agency (NSA), and DOD31
in sharing classified threat-vector information
among stakeholders. One aspect was sharing by the NSA of threat signatures obtained through its
computer monitoring activities.32
26
Reputation costs refers to the various forms of economic and other harm that an entity may experience as a result of
damage to its reputation with customers or others. For example, if a company experiences a cyberattack in which its
customer records are stolen or compromised, and the attack is made public, customers may switch to other companies
for which attacks have not been made public, whether or not they have occurred.
27
Notable examples include the chemical industry, electricity, financial, and transportation sectors.
28
See, e.g., ISAC Council, “National Council of ISACS,” 2013, http://www.isaccouncil.org/.
29
See, e.g., Department of Homeland Security, “Critical Infrastructure Protection Partnerships and Information
Sharing,” 2013, http://www.dhs.gov/critical-infrastructure-protection-partnerships-and-information-sharing.
30
DIB refers to the Defense Industrial Base, one of the CI sectors identified by DHS.
31
NSA is a DOD-led agency but has some government-wide responsibilities as a member of the intelligence
community.
32
The program may in some ways be considered a private-sector version of DHS’s EINSTEIN 3 cybersecurity
initiative for federal systems (see, for example, Department of Homeland Security, Privacy Impact Assessment for the
Enhanced Cybersecurity Services (ECS), January 16, 2013, http://www.dhs.gov/sites/default/files/publications/privacy/
privacy_pia_nppd_ecs_jan2013.pdf).

11.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 7
In May 2012, DOD established the DIB Cybersecurity/Information Assurance (CS/IA)
Program,33
making it broadly available to all eligible DIB partners. Under the program, DOD
provides defense contractors with classified and unclassified cyberthreat information and
cybersecurity best practices, while DIB participants report cyber-incidents, coordinate on
mitigation strategies, and participate in cyber intrusion damage assessments if DOD information
is compromised. Participating companies may also join an optional classified-information sharing
subprogram, known as the DIB Cybersecurity Enhancement Program (DECS)—formerly known
as the DIB Cyber Pilot34
—by meeting specified security requirements.
To expand the program beyond the DIB sector, DHS established the Joint Cybersecurity Services
Pilot (JCSP) in January 2012, the first phase of which focused on the DECS program and shifted
operational relationships with participating commercial service providers (CSPs) to DHS. DHS
made the program permanent in July 2012. In January 2013, the department named the program
Enhanced Cybersecurity Services (ECS) and expanded it to all CI sectors, including the federal
sector.35
In this program, DHS does not share threat indicators with CI entities directly but rather
with participating CSPs. DOD still serves as the point of contact for participating DIB
contractors.36
The executive order builds on such established programs by requiring the Secretary of Homeland
Security to
• expand ECS to all CI sectors;
• expedite processing of security clearances to appropriate CI personnel; and
• expand programs to place relevant private-sector experts in federal agencies on a
temporary basis.
It also requires the Secretary of Homeland Security and the Attorney General to expedite
collection of threat indicators and dissemination of them to targeted entities.
Voluntary Cybersecurity Framework
The increasing potential for attacks that might cripple components of CI or otherwise damage the
national economy, as discussed above, has led to debate about the best way to protect those
sectors beyond improvements in information sharing. Some CI sectors are subject to federal
regulation with respect to cybersecurity,37
while the protection of others relies largely on
voluntary efforts. The efficacy of that mix of voluntary and regulatory efforts has been a
prominent issue in the ongoing debate about federal cybersecurity legislation. Proponents of
33
32 C.F.R. Part 236.
34
John Reed, “DoD-DHS’ Info Sharing Program on Cyber Threats Isn’t Shrinking (Updated),” Foreign Policy: Killer
Apps, October 9, 2012, http://killerapps.foreignpolicy.com/posts/2012/10/09/
dod_dhs_cyber_threat_info_sharing_program_isnt_shrinking.
35
Department of Homeland Security, Privacy Impact Assessment for ECS.
36
Ibid.
37
For discussion of regulations on security of information systems for some CI sectors, see Government Accountability
Office, Information Technology: Federal Laws, Regulations, and Mandatory Standards for Securing Private Sector
Information Technology Systems and Data in Critical Infrastructure Sectors, GAO-08-1075R, September 16, 2008,
http://www.gao.gov/assets/100/95747.pdf.

12.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 8
additional regulation argue that the voluntary approach has not provided sufficient protection,
whereas opponents argue that expanding federal requirements would be costly and ineffective.
Also, there appears to be some uncertainty about the extent to which existing statutory authority
would permit new cybersecurity requirements in some sectors.
E.O. 13636 builds on the involvement of the National Institute of Standards and Technology
(NIST) in the development of cybersecurity technical standards38
and its statutory responsibilities
to work with both government and private entities on various aspects of standards and
technology.39
The order requires the following:
• NIST—lead the development of the Cybersecurity Framework, an effort that uses
an open, consultative process to reduce cybersecurity risks to CI; focuses on
cross-sector, voluntary consensus standards and business best practices; is
technology-neutral; identifies areas for improvement; and is reviewed and
updated as necessary.
• Secretary of Homeland Security—set performance goals for the framework,
establish a voluntary program to support its adoption, and coordinate
establishment of incentives for adoption.
• Sector-specific agencies—coordinate review of the framework and development
of sector-specific guidance, and report annually to the President on participation
by CI sectors.
• CI regulatory agencies—engage in consultative review of the framework,
determine whether existing cybersecurity requirements are adequate, and report
to the President whether the agencies have authority to establish requirements
that sufficiently address the risks (it does not state that the agencies must
establish such requirements, however), propose additional authority where
required, and identify and recommend remedies for ineffective, conflicting, or
excessively burdensome cybersecurity requirements.
The executive order stipulates that it provides no authority for regulating critical infrastructure in
addition to that under existing law, and it does not alter existing authority.
The development of the framework is arguably the most innovative and labor-intensive
requirement in the executive order. None of the major legislative proposals in the 111th
and 112th
Congresses had proposed using NIST to coordinate an effort led by the private sector to develop a
framework for cybersecurity, such as is envisioned by the executive order. Hundreds of entities
have been involved in NIST’s efforts to date, beginning with a Request for Information in
February and including several public workshops.40
38
See, e.g., National Institute of Standards and Technology, “Computer Security Resource Center,” February 20, 2013,
http://csrc.nist.gov/.
39
15 U.S.C. §272.
40
National Institute of Standards and Technology, “Cybersecurity Framework,” October 30, 2013, http://www.nist.gov/
itl/cyberframework.cfm.

13.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 9
Other Provisions
The executive order contains several additional provisions on CI cybersecurity:
Acquisition and Contracting. The Secretary of Defense and the Administrator of General Services
must make recommendations to the President on incorporating security standards in acquisition
and contracting processes, including harmonization of cybersecurity requirements.
Consultative Process. The Secretary of Homeland Security is required to establish a broad
consultative process to coordinate improvements in the cybersecurity of critical infrastructure.
Cybersecurity Workforce. The Secretary of Homeland Security is required to coordinate technical
assistance to critical-infrastructure regulatory agencies on development of their cybersecurity
workforce and programs.
High-Risk Critical Infrastructure. The order requires the Secretary of Homeland Security to use
consistent and objective criteria, the consultative process established under the order, and
information from relevant stakeholders to identify and update annually a list of critical
infrastructure for which a cyberattack could have catastrophic regional or national impact, but not
including commercial information technology products or consumer information technology
services. The Secretary must confidentially notify owners and operators of critical infrastructure
that is so identified of its designation and provide a process to request reconsideration.
Privacy and Civil Liberties. The order requires agencies to ensure incorporation of privacy and
civil liberties protections in agency activities under the order, including protection from
disclosure of information submitted by private entities, as permitted by law. The DHS Chief
Privacy Officer and Officer for Civil Rights and Civil Liberties must assess risks to privacy
and civil liberties of DHS activities under the order and recommend methods of mitigation to
the Secretary in a public report. Agency privacy and civil liberties officials must provide
assessments of agency activities to DHS.
E.O. 13636 Implementation Deliverables and Deadlines
The order contains several requirements with deadlines, and other requirements with no
associated dates. In March 2013, DHS announced that it had formed a task force with eight
working groups focused on the various deliverables for which it is responsible.41
Several
deliverables have specific associated dates:
June 12, 2013
• Instructions for producing unclassified threat reports (Secretary of Homeland
Security, Attorney General, Director of National Intelligence) (Sec. 4(a)).
• Procedures for expansion of the Enhanced Cybersecurity Services Program
(Secretary of Homeland Security) (Sec. 4(c)).42
41
Department of Homeland Security, “Integrated Task Force,” March 18, 2013, http://www.dhs.gov/sites/default/files/
publications/EO-PPD%20Fact%20Sheet%2018March13.pdf.
42
Department of Homeland Security, “Enhanced Cybersecurity Services,” 2013, http://www.dhs.gov/enhanced-
(continued...)

14.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 10
• Recommendations to the President on incentives to participate in the framework
(Secretaries of Homeland Security, Commerce, and the Treasury) (Sec. 8(d)).43
• Recommendations to the President on acquisitions and contracts (Secretary of
Defense, Administrator of General Services) (Sec 8(e)).44
July 12, 2013
• Designation of critical infrastructure at greatest risk (Secretary of Homeland
Security) (Sec. 9(a)).45
October 10, 2013
• Publication of preliminary Cybersecurity Framework (Director of the National
Institute of Standards and Technology) (Sec. 7(e)).46
February 12, 2014
• Report on privacy and civil liberties, preceded by consultations (Chief Privacy
Officer and Officer for Civil Rights and Civil Liberties of DHS) (Sec. 5(b)).
• Publication of final Cybersecurity Framework (Director of the National Institute
of Standards and Technology) (Sec. 7(e)).
May 13, 2014
• Reports to the President on review of regulatory requirements (agencies with
regulatory responsibilities for critical infrastructure) (Sec. 10(a)).
• Proposed additional risk mitigation actions (agencies with regulatory
responsibilities for critical infrastructure) (Sec. 10(b)).
(...continued)
cybersecurity-services.
43
Department of Homeland Security Integrated Task Force, Executive Order 13636: Improving Critical Infrastructure
Cybersecurity, Incentives Study Analytic Report, June 12, 2013, http://www.dhs.gov/sites/default/files/publications/
dhs-eo13636-analytic-report-cybersecurity-incentives-study.pdf; Department of Commerce, Recommendations to the
President on Incentives for Critical Infrastructure Owners and Operators to Join a Voluntary Cybersecurity Program,
August 6, 2013, http://www.ntia.doc.gov/files/ntia/Commerce_Incentives_Recommendations_Final.pdf; Department of
the Treasury, Summary Report to the President on Cybersecurity Incentives Pursuant to Executive Order 13636,
August 6, 2013, http://www.treasury.gov/press-center/Documents/
Treasury%20Report%20(Summary)%20to%20the%20President%20on%20Cybersecurity%20Incentives_FINAL.pdf.
44
A request for information on this topic was issued in May 2013 (Department of Homeland Security and Department
of Defense, “Joint Working Group on Improving Cybersecurity and Resilience through Acquisition,” Federal Register
78 [May 13, 2013]: 27966–27968).
45
See Statement of Robert Kolasky, Department of Homeland Security, Oversight of Executive Order 13636 and
Development of the Cybersecurity Framework, Before the House Committee on Homeland Security, Subcommittee on
Cybersecurity, Infrastructure Protection, and Security Technologies, July 18, 2013, http://docs.house.gov/meetings/
HM/HM08/20130718/101151/HHRG-113-HM08-Wstate-KolaskyR-20130718.pdf.
46
National Institute of Standards and Technology, Preliminary Cybersecurity Framework, October 22, 2013,
http://www.nist.gov/itl/upload/preliminary-cybersecurity-framework.pdf.

15.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 11
February 12, 2016
• Reports to the Office of Management and Budget on ineffective, conflicting,
or burdensome requirements (agencies with regulatory responsibilities for
critical infrastructure) (Sec. 10(c)).
The order also includes more than 20 actions for which no specific date is provided. Many of the
activities under the order are in the process of development. Some of the deliverables have been
made publicly available, largely in accordance with the deadlines in the order, as noted above in
the footnotes. Some provisions may already have had some effect. For example, the provision on
expedited security clearances was apparently used in responses to a cyberattack this past spring
on several banks, to facilitate communication by the FBI with the banks.47
Relationship of the Executive Order to Presidential Policy Directive
21
Presidential Policy Directive 21 (PPD 21),48
Critical Infrastructure Security and Resilience, on
protection of critical infrastructure, was released in tandem with Executive Order 13636. PPD 21
supersedes Homeland Security Presidential Directive 7 (HSPD 7), Critical Infrastructure
Identification, Prioritization, and Protection, released December 17, 2003. The new PPD seeks to
strengthen both the cyber- and physical security and resilience of critical infrastructure by
• clarifying functional relationships among federal agencies, including the
establishment of separate DHS operational centers for physical and cyber-
infrastructure;
• identifying baseline requirements for information sharing, to facilitate timely and
efficient information exchange between government and critical-infrastructure
entities while respecting privacy and civil liberties;
• applying integration and analysis capabilities in DHS to prioritize and manage
risks and impacts, recommend preventive and responsive actions, and support
incident management and restoration efforts for critical infrastructure; and
• organizing research and development (R&D) to enable secure and resilient
critical infrastructure, enhance impact-modeling capabilities, and support
strategic DHS guidance.
47
Joseph Menn, “FBI Says More Cooperation with Banks Key to Probe of Cyber Attacks,” Reuters, May 13, 2013,
http://www.reuters.com/article/2013/05/13/us-cyber-summit-fbi-banks-idUSBRE94C0XH20130513.
48
The White House, “Critical Infrastructure Security and Resilience,” Presidential Policy Directive 21, February 12,
2013, http://www.whitehouse.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-
security-and-resil.

16.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 12
PPD 21 Implementation Deliverables and Deadlines
June 12, 2013
• Description of functional relationships within DHS and across other federal
agencies relating to critical infrastructure security and resilience (Secretary of
Homeland Security).49
July 12, 2013
• Analysis of public-private partnership models with recommended improvements
(Secretary of Homeland Security).50
August 11, 2013
• Convening of experts to identify baseline information and intelligence exchange
requirements (Secretary of Homeland Security).
October 10, 2013
• Demonstration of “near real-time” situational-awareness capability for critical
infrastructure (Secretary of Homeland Security).
• Updated National Infrastructure Protection Plan that addresses implementation of
the directive (Secretary of Homeland Security).51
February 12, 2015
• First quadrennial National Critical Infrastructure Security and Resilience R&D
Plan (Secretary of Homeland Security).52
In addition to DHS, the directive describes specific responsibilities for the Departments of
Commerce, Interior, Justice, and State, the Intelligence Community, the General Services
Administration, the Federal Communications Commission, the sector-specific agencies, and all
federal departments and agencies.53
49
Department of Homeland Security Integrated Task Force, “National Infrastructure Protection Plan Update – Public
Slides for National Infrastructure Advisory Council,” July 17, 2013, http://www.dhs.gov/sites/default/files/publications/
final-niac-brief-2013-07-11-v2-expanded.pdf.
50
Ibid.
51
This document was not released on October 10, with a draft version reportedly criticized by industry representatives
(see Jason Miller, “Industry, DHS at Odds Over Draft Plan to Secure Critical Infrastructure,” Federal News Radio,
November 4, 2013, http://www.federalnewsradio.com/473/3497578/Industry-DHS-at-odds-over-draft-plan-to-secure-
critical-infrastructure).
52
HSPD 7 gave primary responsibility for coordinating R&D to the Office of Science and Technology Policy.
53
HSPD 7 did not describe specific responsibilities of the Intelligence Community, the General Services
Administration, or the Federal Communications Commission.

17.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 13
Scope of Presidential Authority
E.O. 13636 was issued in the wake of the lack of enactment of cybersecurity legislation in the
112th
Congress, apparently at least in part as a response to that.54
That raises questions about what
authority the President has to act on this matter through an executive order. That issue is
discussed below.
The issuance of an executive order frequently raises questions about whether the order exceeds
the scope of the President’s authority, in relation to the constitutional separation of powers and
validly enacted legislation. Since the latter half of the 20th
century, these questions have typically
been evaluated using the tripartite framework set forth by U.S. Supreme Court Justice Jackson in
his concurring opinion in the case of Youngstown Sheet & Tube Company v. Sawyer.55
First, if the
President has acted according to an express or implied grant of congressional authority,
presidential “authority is at its maximum.” Second, in situations where Congress has neither
granted nor denied authority to the President, the President acts in reliance only “upon his own
independent powers, but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain.” Third, in instances where
presidential action is “incompatible with the express or implied will of Congress,” the power of
the President is at its minimum. In such a circumstance, presidential action must rest upon an
exclusive Article II power.
As an example of the first category, Congress has previously provided explicit statutory authority
for the executive to regulate the security of private entities.56
For example,57
chemical facilities
are subject to chemical facility anti-terrorism standards (CFATS) promulgated by the Department
of Homeland Security (DHS), which include provisions requiring chemical facilities to take
measures to protect against cyberthreats.58
Similarly, the Maritime Transportation Security Act
(MTSA) gives the Coast Guard the authority to regulate the security of maritime facilities and
vessels, including requiring security plans that contain provisions for the security of
communications systems used in those facilities.59
In these and other situations where Congress
has provided explicit regulatory authority to the executive branch related to cybersecurity, the
President’s authority to direct sector-specific agencies to coordinate, evaluate, develop or
implement appropriate cybersecurity standards pursuant to the executive order60
would appear to
be at its maximum.
In other cases, where there may only be congressional silence regarding the President’s authority
to direct action on cybersecurity issues, an argument could be made that the issuance of such an
54
The White House, “Executive Order on Improving Critical Infrastructure Cybersecurity” Press Release, February 12,
2013, http://www.whitehouse.gov/the-press-office/2013/02/12/executive-order-improving-critical-infrastructure-
cybersecurity-0 (describing Executive Order as a “down-payment on expected further legislative action”).
55
343 U.S. 579, 634 (1952).
56
See also Government Accountability Office, Federal Laws, Regulations, and Mandatory Standards.
57
The existing regulatory frameworks discussed here do not constitute an exhaustive list of all regulations applicable to
critical infrastructure, but are only intended to provide some context for the following discussions.
58
P.L. 109-295, §550 (codified at 6 U.S.C. §121 note). For a more detailed discussion of CFATS, see CRS Report
R41642, Chemical Facility Security: Issues and Options for the 112th
Congress, by Dana A. Shea.
59
46 U.S.C. §§70102-70103.
60
E.O. 13636, §10.

18.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 14
executive order falls within the “zone of twilight,” assuming that the action could be concurrently
justified under some explicit or implied power granted to the President by the Constitution. For
example, section 9 of E.O. 13636 directs the Secretary of Homeland Security to use a risk-based
approach to identify critical infrastructure where a cybersecurity incident could result in
catastrophic effects.61
While such identification is arguably authorized under the Homeland
Security Act of 2002,62
it might alternatively be justified under the President’s constitutional
authority to request written opinions from the heads of executive departments.63
However, some past legislative proposals may be beyond the reach of unilateral executive action.
For example, prior proposals to regulate the cybersecurity of critical infrastructure have also
proposed limits on liability or safe harbors for regulated entities that comply with the regulatory
schemes,64
because the creation of a regulatory scheme can have an adverse effect on the
exposure of regulated entities to civil liability.65
The scope of such proposed limits has ranged
from complete immunity, to lesser restrictions such as prohibitions against the awarding of
punitive damages. Such limits on liability may also be made dependent upon an entity’s
satisfaction of its regulatory obligations, in order to create a further incentive for compliance.
The abrogation of civil claims under common law or contract law without explicit congressional
authorization may be difficult to justify on the executive’s constitutional powers alone. Notably,
the executive order does not purport to provide any similar liability safe harbors for private
entities that comply with cybersecurity standards developed pursuant to the executive order.
While it does direct the Secretary of Homeland Security to coordinate the establishment of a set
of incentives to promote voluntary participation in the critical infrastructure program, it also
acknowledges that some incentives may require legislation affirmatively authorizing such
limitations.66
This is not to say that the executive order will have no impact on liability. The
publication of recommendations or risk assessments, as provided under the executive order, may
be used by litigants as evidence of the appropriate standard of care to apply in tort litigation
resulting from a cybersecurity incident, even if such standards are not controlling.67
Similarly, it may not be possible for an executive order to authorize telecommunications
providers to engage in more aggressive monitoring of communications networks to help identify
61
E.O. 13636, §9(a).
62
See, e.g., 6 U.S.C. §121(d)(2) (directing the Secretary to carry out comprehensive assessments of the vulnerabilities
of the key resources and critical infrastructure of the United States to determine the risks posed by particular types of
terrorist attacks).
63
U.S. Constitution, article I, §2, clause 1 (“[the President] may require the Opinion, in writing, of the principal Officer
in each of the executive Departments, upon any Subject relating to the Duties of their respective Office”).
64
See, e.g., S. 3414 §104(c)(1) (112th
Cong.) (barring the award of punitive damages against any regulated entity
arising out of a cyber-incident if the entity is in substantial compliance with voluntary cybersecurity practices
established under the bill). Exposure to civil liability may also be increased if an entity receives information about a
cyberthreat (as under §4 of the Executive Order) and fails to take reasonable measures to defend against or mitigate that
threat.
65
See Restatement (Third) of Torts: Product Liability §4 (b) (“[a] product’s compliance with an applicable product
safety statute or administrative regulation is properly considered in determining whether the product is defective with
respect to the risks sought to be reduced by the statute or regulation”).
66
E.O. 13636, §8(d) (Feb. 12, 2013). When developing the incentives, the Secretary is required to note “whether the
incentives would require legislation or can be provided under existing law and authorities.”
67
See, e.g., Burmaster v. Gravity Drainage Dist. No. 2, 448 So. 2d 162, 164 (La. Ct. App. 1984) (Occupational Safety
and Health Act regulations and standards published by industry groups warrant consideration as evidence of standard of
care, even if they are not controlling).

19.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 15
cyber threats or attacks in real-time. Such an executive action would contravene current federal
laws protecting electronic communications, and would be evaluated in the third category of
Justice Jackson’s Youngstown framework, where the President’s power is at its minimum. Such an
executive order would not be effective, unless such action fell within a power exclusively granted
to the Executive by the Constitution. Consistent with this analysis, E.O. 13636 does not purport to
provide any authority for private telecommunications providers to engage in monitoring of their
networks.
Relationship to Legislative Proposals
While E.O. 13636 does not purport to create new authorities, there are commonalities between
some of its provisions and some of the cybersecurity proposals from the 112th
and 113th
Congresses. A comparison of a selection of the issues covered by those proposals and the
executive order is below.68
Several comprehensive legislative proposals on cybersecurity in the 112th
Congress received
considerable attention, including a Senate bill, a set of bill proposals by the Obama
Administration, and a report with recommendations from a House Republican task force,69
which
informed several House bills. The various proposals differed both in some of the issues they
addressed and in how they approached them. Among the issues addressed were the following:
• Cybersecurity workforce authorities and programs,
• Cybersecurity R&D,
• Data-breach notification,
• DHS authorities for protection of federal systems,
• FISMA reform,
• Information sharing,
• Penalties for cybercrime,
• Protection of privately held CI, including public/private sector collaboration and
regulation of privately held CI,
• Public awareness about cybersecurity, and
• Supply-chain vulnerabilities.
E.O. 13636 mainly addresses two of those topics: information sharing and protection of privately
held CI. With respect to information sharing, the executive order does not provide exemptions
from liability stemming from information sharing, which would require changes to current law.
Several of the legislative proposals included such changes. Also, some proposals included the
68
For more information on the current legislative framework for cybersecurity, including discussion of provisions in
legislative proposals in the 112th
and 113th
Congresses, see CRS Report R42114, Federal Laws Relating to
Cybersecurity: Overview and Discussion of Proposed Revisions, by Eric A. Fischer.
69
House Republican Cybersecurity Task Force, Recommendations of the House Republican Cybersecurity Task Force,
October 5, 2011, http://thornberry.house.gov/UploadedFiles/CSTF_Final_Recommendations.pdf.

20.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 16
creation of new entities for information sharing, whereas the executive order uses existing
mechanisms.
With respect to protection of critical infrastructure, the provisions on designation of CI and
identification of relevant regulations are related to those in some legislative proposals in the 112th
Congress. The role of NIST in developing the Cybersecurity Framework was not in the legislative
proposals from that Congress, although several would have expanded the agency’s role in
cybersecurity.
In the 113th
Congress, H.R. 624 would address information sharing, and S. 1353 would require
NIST to lead a public/private effort similar to the process by which the Cybersecurity Framework
is being developed.
Reactions to the Executive Order
Given the absence of enacted comprehensive cybersecurity legislation, some security observers
contend that the executive order is a necessary step in securing vital assets against cyberthreats.
Other observers, however, have raised concerns.70
Common themes by such critics include the
following claims:
• The order offers little more than do existing processes. Such critics point out that,
for example, the Enhanced Cybersecurity Services program was in place before
the release of the order, and that a variety of efforts have been underway to
develop and adopt voluntary standards and best practices in cybersecurity for
many years. Proponents of the order argue that it lays out and clarifies Obama
Administration goals, requires specific deliverables and timelines, and that the
framework and other provisions are in fact new with the executive order.
• The order could make enactment of legislation less likely. These critics express
concern that Congress might decide to wait until the major provisions of the
order have been fully implemented before considering legislation. Proponents
state that immediate action was necessary in the absence of legislation, and that
changes in current law are necessary no matter how successful the executive
order might be, to provide liability protections for information sharing and to
meet other needs.
• The process for developing the framework is either too slow or too rushed. Some
observers believe that some actions to protect critical infrastructure are well-
established and should be taken immediately, given the nature and extent of the
current threat. They state that the year-long process to develop the framework
may delay implementation of needed security measures71
and creates unnecessary
70
See, for example, Paul Rosenzweig and David Inserra, Obama’s Cybersecurity Executive Order Falls Short, Issue
Brief #3852, February 14, 2013, http://www.heritage.org/research/reports/2013/02/obama-s-cybersecurity-executive-
order-falls-short; Dave Frymier, “The Cyber Security Executive Order Is Not Enough,” Innovation Insights:
Wired.com, March 1, 2013, http://www.wired.com/insights/2013/03/the-cyber-security-executive-order-is-not-enough/.
71
For example, some suppliers to the federal government have reportedly called for suspension of procurement
rulemaking relating to cybersecurity until the framework has been published (Aliya Sternstein, “Contractors Ask GSA
to Freeze Cyber-Related Regulations,” Nextgov, May 17, 2013, http://www.nextgov.com/cybersecurity/2013/05/
contractors-ask-gsa-freeze-cyber-related-regulations/63244/?oref=nextgov_cybersecurity).

21.
The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress
Congressional Research Service 17
and unacceptable risks. Others counter that widespread adoption of the
framework requires consensus, which takes time to achieve, and that the one-year
timeframe may be insufficient, given that the process for developing and
updating consensus standards often takes several years. Some also state that the
framework process does not preclude entities from adopting established security
measures immediately.
• The framework risks becoming a form of de facto regulation, or alternatively, its
voluntary nature makes it insufficiently enforceable. Another concern of some is
that the executive order could lead to government intrusiveness into private-
sector activities, for example through increased regulation under existing
statutory authority,72
while others contend that voluntary measures have a poor
history of success. Some others, however, have argued that changes in the
business environment—such as the advent of continuous monitoring, more
powerful analytical tools, and a better prepared workforce—improve the
likelihood that a voluntary approach can be successful.73
• The order could lead to overclassification or underclassification of high-risk
critical infrastructure by DHS. Some observers have expressed concern that the
requirement in the order for DHS to designate high-risk critical infrastructure
may be insufficiently clear and could lead to either harmfully expansive
designations or inappropriate exclusions of entities.74
This might be particularly a
problem if the criteria are not sufficiently validated.75
It appears to be too early in the implementation of the executive order to determine how
effectively the concerns described above will be addressed and whether the responses will satisfy
critics and skeptics. Overall, however, response to the order from the private sector—including
critical-infrastructure entities, trade associations, and cybersecurity practitioners—appears to be
cautiously optimistic.
72
For example, some believe that the framework, while voluntary, “could develop in such a way that companies will be
forced to adopt prescriptive standards due to the fact that information on program adoption for ‘high risk’ industries
may be made public. More concerning, this could be done without a review process and could be used to leverage [sic]
in ways that may not be beneficial to lowering overall risk” (Testimony of David E. Kepler, Senate Committee on
Homeland Security and Governmental Affairs and Senate Committee on Commerce, Science, and Transportation, “The
Cybersecurity Partnership Between the Private Sector and Our Government: Protecting Our National and Economic
Security,” hearing, March 7, 2013, http://www.hsgac.senate.gov/hearings/the-cybersecurity-partnership-between-the-
private-sector-and-our-government-protecting-our-national-and-economic-security).
73
Mike McConnell et al., The Cybersecurity Executive Order (Booz Allen Hamilton, April 26, 2013),
http://www.boozallen.com/media/file/BA13-051CybersecurityEOVP.pdf.
74
Testimony of Roger Mayer, House Committee on Energy and Commerce, “Cyber Threats and Security Solutions,”
hearing, May 21, 2013, http://energycommerce.house.gov/hearing/cyber-threats-and-security-solutions.
75
The Government Accountability Office (GAO) expressed similar concerns about DHS’s National Critical
Infrastructure Prioritization Program (NCIPP) list of highest-priority U.S. infrastructure (Government Accountability
Office, Critical Infrastructure Protection: DHS List of Priority Assets Needs to Be Validated and Reported to
Congress, GAO-13-296, March 2013, http://www.gao.gov/assets/660/653300.pdf). The relationship between the
NCIPP list and that under the executive order has raised some concerns. There appear to be some differences between
the lists that have resulted in some disagreements with the private sector (see, for example, Testimony of Dave
McCurdy, House Committee on Energy and Commerce, Cyber Threats and Security Solutions, hearing, May 21, 2013,
http://energycommerce.house.gov/hearing/cyber-threats-and-security-solutions).